Saturday, August 29, 2009

Memo to Eric Holder -- International Law takes precedence over yours

29 August, 2009

Mr. Eric Holder
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Eric,

I see that you have appointed somebody to look into American war crimes.

"U.S. Attorney General Eric Holder appointed Assistant United States Attorney John Durham to investigate torture by U.S. officials since President Bush commenced the “war on terror,” but in the same act also gave political cover from that prosecutor to anyone who actually committed torture.

"Holder announced the August 24 appointment with the proviso that anyone who engaged in torture at the urging of senior Bush administration officials would be exempted from prosecution. Holder said torturers “need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”

I've got a news flash for you, Eric, it doesn't work. This particular news flash was perhaps best articulated by Winston Churchill in 1950, in "The Grand Alliance" Houghton Mifflin, Boston, pg. 368:

"It is impossible to complete this account without referring to a terrible decision of policy adopted by Hitler towards his new foes, and enforced under all the pressure of the mortal struggle in vast barren or ruined lands and winter horrors. Verbal orders were given by him at a conference on June 124, 1941, which to a large extend governed the conduct of the German Army towards the Russian troops and people and let to many ruthless and barbarous deeds. According to the Nuremberg documents, General Halder testified:

"Prior to the attack of Russia the Fuehrer called a conference of all the commanders and persons connected with the Supreme command on the question of the forthcoming attack on Russia. I cannot recall the exact date of this conference...At this conference the Fuehrer stated that the methods used in the war against the Russians would have to be different from those used against the West...He said the struggle between Russia and Germany was a Russian struggle. He stated that since the Rrussians were not signatories of the Hague Convention the treatement of their prisoners of war did not have to follow the Articles of the Convention...He [also] said that the so-called Commissars should not be considered prisoners or war.

"And according to Keitel:

"Hitler's main theme was that this was the decisive battle between the two ideologies and that this fact made it impossible to use in this war [with Russia] methods, as we soldiers knew them, which were considered to be the only correct ones under international law."

Keitel was hung at Nuremberg, Eric, just in case you were thinking of international travel in the near future.

And just so you know where you stand, here are the Nuremberg Principles that the United States of America - that's you, Eric - signed up for, beginning with the London Charter of August 8, 1945. I'm giving you the Full Monty:


Article 1.

In pursuance of the Agreement signed on the 8th day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt trial and punishment of the major war criminals of the European Axis.

Article 2.

The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfill his functions, his alternate shall take his place.

Article 3.

Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the Defendants or their Counsel. Each Signatory may replace its members of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a Trial, other than by an alternate.

Article 4

(a) The presence of all four members of the Tribunal or the alternate for any absent member shall be necessary to constitute the quorum.

(b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during the trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If, however, a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside.

(c) Save as aforesaid the Tribunal shall take decisions by a majority vote and in case the votes are evenly divided, the vote of the President shall be decisive: provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal.

Article 5.

In case of need and depending on the number of the matters to be tried, other Tribunals may be set up; and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter.


Article 6.

The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7.

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Article 9.

At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.

Article 10.

In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.

Article 11.

Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization.

Article 12.

The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.

Article 13.

The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter.


Article 14.

Each Signatory shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals.

The Chief Prosecutors shall act as a committee for the following purposes:

(a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff,

(b) to settle the final designation of major war criminals to be tried by the Tribunal,

(c) to approve the Indictment and the documents to be submitted therewith,

(d) to lodge the Indictment and the accompany documents with the Tribunal,

(e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter. The Tribunal shall have the power to accept, with or without amendments, or to reject, the rules so recommended.

The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, or the crimes with which he shall be charged, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried, or the particular charges be preferred against him.

Article 15.

The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties:

(a) investigation, collection and production before or at the Trial of all necessary evidence,

(b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof,

(c) the preliminary examination of all necessary witnesses and of all Defendants,

(d) to act as prosecutor at the Trial,

(e) to appoint representatives to carry out such duties as may be assigned them,

(f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.

It is understood that no witness or Defendant detained by the Signatory shall be taken out of the possession of that Signatory without its assent.


Article 16.

In order to ensure fair trial for the Defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.


Article 17.

The Tribunal shall have the power

(a) to summon witnesses to the Trial and to require their attendance and testimony and to put questions to them

(b) to interrogate any Defendant,

(c) to require the production of documents and other evidentiary material,

(d) to administer oaths to witnesses,

(e) to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission.

Article 18.

The Tribunal shall

(a) confine the Trial strictly to an expeditious hearing of the cases raised by the charges,

(b) take strict measures to prevent any action which will cause reasonable delay, and rule out irrelevant issues and statements of any kind whatsoever,

(c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges.

Article 19.

The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.

Article 20.

The Tribunal may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof.

Article 21.

The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

Article 22.

The permanent seat of the Tribunal shall be in Berlin. The first meetings of the members of the Tribunal and of the Chief Prosecutors shall be held at Berlin in a place to be designated by the Control Council for Germany. The first trial shall be held at Nuremberg, and any subsequent trials shall be held at such places as the Tribunal may decide.

Article 23.

One or more of the Chief Prosecutors may take part in the prosecution at each Trial. The function of any Chief Prosecutor may be discharged by him personally, or by any person or persons authorized by him.

The function of Counsel for a Defendant may be discharged at the Defendant's request by any Counsel professionally qualified to conduct cases before the Courts of his own country, or by any other person who may be specially authorized thereto by the Tribunal.

Article 24.

The proceedings at the Trial shall take the following course:

(a) The Indictment shall be read in court.

(b) The Tribunal shall ask each Defendant whether he pleads "guilty" or "not guilty.''

(c) The prosecution shall make an opening statement.

(d) The Tribunal shall ask the prosecution and the defense what evidence (if any) they wish to submit to the Tribunal, and the Tribunal shall rule upon the admissibility of any such evidence.

(e) The witnesses for the Prosecution shall be examined and after that the witnesses for the Defense. Thereafter such rebutting evidence as may be held by the Tribunal to be admissible shall be called by either the Prosecution or the Defense.

(f) The Tribunal may put any question to any witness and to any defendant, at any time.

(g) The Prosecution and the Defense shall interrogate and may crossexamine any witnesses and any Defendant who gives testimony.

(h) The Defense shall address the court.

(i) The Prosecution shall address the court.

(j) Each Defendant may make a statement to the Tribunal.

(k) The Tribunal shall deliver judgment and pronounce sentence.

Article 25.

All official documents shall be produced, and all court proceedings conducted, in English, French and Russian, and in the language of the Defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal is sitting, as the Tribunal considers desirable in the interests of the justice and public opinion.


Article 26.

The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.

Article 27.

The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.

Article 28.

In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany.

Article 29.

In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof. If the Control Council for Germany, after any Defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 14 hereof, for such action as they may consider proper, having regard to the interests of justice.


Article 30.

The expenses of the Tribunal and of the Trials, shall be charged by the Signatories against the funds allotted for maintenance of the Control Council of Germany.

And just to be very clear who signed on for this, Eric, here we have the signatories to the London Charter:

IN WITNESS WHEREOF the Undersigned have signed the present Agreement.

DONE in quadruplicate in London this 8th day of August 1945 each in English, French and Russian, and each text to have equal authenticity.

For the Government of the United States of America

Robert H. Jackson

For the Provisional Government of the French Republic

Robert Falco

For the Government of the United Kingdom of Great Britain and Northern Ireland

Jowitt C.

For the Government of the Union of Soviet Socialist Republics

I. Nikitchenko

A. Trainin

I draw your attention particularly to Article 8, which short-circuits your "inquiry". There is of course the weasel clause "may be considered in mitigation of punishment if the Tribunal determines that justice so requires," but that didn't stop the Tribunal from hanging Keitel.

I'm sure, Eric, that you know who Robert H. Jackson is, and what he stood for. I am equally sure he would be appalled at your current activity, and would want you, among many other Americans, to be tried at The Hague. I think you know how that would turn out.

Best wishes

Saturday, August 22, 2009

The Four Hundred Thousand — a Debate on Afghanistan

As part of the visit of NATO's Secretary General to Iceland, a debate may have been held on NATO policy in Afghanistan at the now derelict headquarters of the defunct Kaupthing Bank, in the previously lavish office of Hreidar Mar Sigurdsson, now resident in Luxembourg.

Secretary General visits Iceland

The NATO Secretary General, Mr. Anders Fogh Rasmussen, paid a visit to Iceland on 20 August 2009. This was Mr. Fogh Rasmussen’s first introductory visit to a NATO capital since his appointment as Secretary General in early August.

During his meeting with Prime Minister Jóhanna Sigurdardóttir and with Ministry of Foreign Affairs Össur Skarphédinsson, Mr. Fogh Rasmussen discussed NATO’s priorities, especially Afghanistan, as well as the NATO-Russia relationship and the challenges that will need to be addressed in relation to the High North.

The Secretary General commended Iceland for its valuable contribution to the reconstruction of Afghanistan, particularly the rehabilitation of the aviation sector. “Icelandalso contributed to our missions in the Balkans and these examples really demonstrate that even a small country can be a great ally. This is exactly how I consider Iceland”,said Mr. Fogh Rasmussen.

In a meeting with members of the Foreign Relations Committee of the Parliament (Althingi), the Secretary General urged parliamentarians to engage actively in the ongoing process to develop a new Strategic Concept for NATO.

Monday, August 17, 2009

The Man from Coquitlam

"The security is restored. All the highways are open. All the roads are open. The police, the army and the people are in charge of the security, so there is nothing to be worried about," Tooryalai Wesa said at a news conference.

CBC News

Wednesday, August 12, 2009

Argument for the Geneva Conventions


August 6-8-9-12

Sunday, August 9, 2009

The argument for Nagasaki....

Szilard Petition, First Version, July 3, 1945
Source: U.S. National Archives, Record Group 77, Records of the Chief of Engineers, Manhattan Engineer District, Harrison-Bundy File, folder #76.

The first version of Leo Szilard's petition, dated July 3, 1945, was more strongly worded than the final version. It was also more specific in identifying the moral issues that he believed were involved.

Rejecting the pretense that the targets would be military, the petition called atomic bombs "a means for the ruthless annihilation of cities."

The bombing of cities, it continued, "had been condemned by American public opinion only a few years ago when applied by the Germans to the cities of England. Our use of atomic bombs in this war would carry the world a long way further on this path of ruthlessness."

The petition concluded by requesting the President "to rule that the United States shall not, in the present phase of the war, resort to the use of atomic bombs."

The July 3 version received 59 signatures at the Chicago Metallurgical Laboratory, but it was not submitted to the President in this form. Szilard sought to broaden support, and rewrote it into the final version of July 17.


Order Sec Army

July 3, 1945


Discoveries of which the people of the United States are not aware may affect the welfare of this nation in the near future. The liberation of atomic power which has been achieved places atomic bombs in the hands of the Army. It places in your hands, as Commander-in-Chief, the fateful decision whether or not to sanction the use of such bombs in the present phase of the war against Japan.

We, the undersigned scientists, have been working in the field of atomic power for a number of years. Until recently we have had to reckon with the possibility that the United States might be attacked by atomic bombs during this war and that her only defense might lie in a counterattack by the same means. Today with this danger averted we feel impelled to say what follows:

The war has to be brought speedily to a successful conclusion and the destruction of Japanese cities by means of atomic bombs may very well be an effective method of warfare. We feel, however, that such an attack on Japan could not be justified in the present circumstances. We believe that the United States ought not to resort to the use of atomic bombs in the present phase of the war, at least not unless the terms which will be imposed upon Japan after the war are publicly announced and subsequently Japan is given an opportunity to surrender.

If such public announcement gave assurance to the Japanese that they could look forward to a life devoted to peaceful pursuits in their homeland and if Japan still refused to surrender, our nation would then be faced with a situation which might require a re-examination of her position with respect to the use of atomic bombs in the war.

Atomic bombs are primarily a means for the ruthless annihilation of cities. Once they were introduced as an instrument of war it would be difficult to resist for long the temptation of putting them to such use.

The last few years show a marked tendency toward increasing ruthlessness. At present our Air Forces, striking at the Japanese cities, are using the same methods of warfare which were condemned by American public opinion only a few years ago when applied by the Germans to the cities of England. Our use of atomic bombs in this war would carry the world a long way further on this path of ruthlessness.

Atomic power will provide the nations with new means of destruction. The atomic bombs at our disposal represent only the first step in this direction and there is almost no limit to the destructive power which will become available in the course of this development. Thus a nation which sets the precedent of using these newly liberated forces of nature for purposes of destruction may have to bear the responsibility of opening the door to an era of devastation on an unimaginable scale.

In view of the foregoing, we, the undersigned, respectfully petition that you exercise your power as Commander-in-Chief to rule that the United States shall not, in the present phase of the war, resort to the use of atomic bombs.

Leo Szilard and 58 co-signers

[Source for number of signers of July 3 petition: Szilard to Frank Oppenheimer, July 23, 1945, Robert Oppenheimer Papers, Library of Congress, Washington D.C.]
Copyright Notice: The original of this document is believed to be in the public domain. Its transcription and formatting as an e-text, however, is copyright 1995-1998 by Gene Dannen (

Thursday, August 6, 2009

The argument for Hiroshima....

Despite a lot of publicity, it's amazingly difficult to get access to Sean Malloy's photos of Hiroshima, allegedly not for "the weak of stomach", although the real distinction of this particular horror from the firebombing of Toyko....

...or Dresden.... difficult to imagine.

We have this one:

...which doesn't strike me as all that different from horror pictures from napalm attacks...

...or for that matter, white phosphorus in Gaza...

...or Auschwitz...

...or an Afghan wedding party bombed by NATO or the Taliban...

...or The Blitz....

...or 9/11...

...or as some American said after the 1991 attack on Baghdad's Amiriyah bomb shelter...

...all these burned women and children look pretty much the same.

Wednesday, August 5, 2009

"The main problem in any democracy..."

" that crowd-pleasers are generally brainless swine who can go out on a stage & whup their supporters into an orgiastic frenzy -- then go back to the office & sell every one of the poor bastards down the tube for a nickel apiece."

Hunter Thompson
Fear and Loathing: On the Campaign Trail '72
Warner Books, New York, 1973, pg. 127

Tuesday, August 4, 2009

Operation Enduring Freedom and Henry Kissinger

So, United Nations Security Council Resolution 1833, of September 22, 2008 states:

"Acting for these reasons under Chapter VII of the Charter of the United Nations,

1. Decides to extend the authorization of the International Security Assistance Force, as defined in resolution 1386 (2001) and 1510 (2003), for a period of twelve months beyond 13 October 2008;"

According to ISAF: "Based in Kabul, the ISAF Headquarters serves as the operational command for the NATO-led mission. It interacts with the Afghan government, governmental and non governmental organisations present in the country to assist with reconstruction, and supports the work of United Nations Assistance Mission in Afghanistan (UNAMA)."

According to the CBC, ISAF headquarters "will not control the separate U.S. contingent of about 10,000 soldiers that is deployed along the border with Pakistan, Appathurai said."

So is that "contingent" covered by Resolution 1833?

It's hard to know. There's nothing about OEF in Resolution 1386, and I can't get through to the "Operation Enduring Freedom" website at the Department of Defense, but if it isn't "authorized" by the Security Council, what is it, legally speaking?

There is a press release on the DOD site:

Operation Enduring Freedom was the U.S.-led operation that toppled the Taliban in 2001. American and coalition servicemembers worked with the Afghan Northern Alliance soon after the terror attack in the United States on Sept. 11, 2001. Part of Operation Enduring Freedom retains that mission: to find and kill or capture terrorists.

Since 2001, servicemembers assigned to Operation Enduring Freedom also have been responsible for training Afghan security forces. Americans assigned to Combined Security Transition Command Afghanistan operate under Operation Enduring Freedom, controlled by U.S. Central Command.

While Operation Enduring Freedom troops are focused on forcing out the enemy and training and equipping Afghan forces, NATO forces are focused on Afghan civilians.

“The focus of the International Security Assistance Force is security for the Afghan people, so reconstruction, governance and development work can take place,” Army Lt. Col. Mark Wright, a Pentagon spokesman, said. “The focus of Operation Enduring Freedom personnel is training Afghan security forces and counter-terrorism.”

About 85 percent of the Operation Enduring Freedom effort now is centered on training and equipping Afghan forces, Wright said.

So, really, Operation Enduring Freedom is not sanctioned by the UN Security Council, and is really outside any law, domestic or international. Maybe John "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully" Yoo has an opinion about that, too, along with Richard "when the president does it that means that it is not illegal" Nixon and "Political satire died when they gave the Nobel Peace Prize to" Henry Kissinger.

If Bush or Cheney ever step outside the United States, their asses should be in The Hague.